California Jury Instruction CACI 3903P Damages From Employer for Wrongful Discharge (Economic Damage)

New September 2003; Revised and Renumbered from CACI No. 2433 November 2018

Nakase Wade | California Business Lawyers & Corporate Lawyers

Give this instruction for any claim in which the plaintiff seeks to recover damages for past and future lost earnings from an employer for a wrongful termination of employment, for example in violation of public policy (see CACI No. 2400 et seq.) or under the Fair Employment and Housing Act (see CACI No. 2500 et seq.) Include “constructively” in the opening paragraph if the plaintiff alleges constructive discharge instead of an actual discharge. (See CACI No. 2510, “Constructive Discharge” Explained.)

This instruction should be followed by CACI No. 3963, Affirmative Defense—Employee’s Duty to Mitigate Damages, if the employee’s duty to mitigate damages is at issue. Also give CACI No. 3904A, Present Cash Value, and CACI No. 3904B, Use of Present-Value Tables.

Other types of tort damages may be available to a plaintiff. For an instruction on emotional distress damages, see CACI No. 3905A, Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage). See punitive damages instructions in the Damages series (CACI No. 3940 et seq.).

•Standard for Punitive Damages. Civil Code section 3294(a).

•Employer Liability for Punitive Damages. Civil Code section 3294(b).

•A tortious termination subjects the employer “ ‘to liability for compensatory and punitive damages under normal tort principles.’ ” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1101 [4 Cal.Rptr.2d 874, 824 P.2d 680], internal citation omitted.)

•“The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment.” (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 [89 Cal.Rptr. 737, 474 P.2d 689], internal citations omitted; see Smith v. Brown-Forman Distillers Corp. (1987) 196 Cal.App.3d 503, 518 [241 Cal.Rptr. 916].)

•“A plaintiff may recover for detriment reasonably certain to result in the future. While there is no clearly established definition of ‘reasonable certainty,’ evidence of future detriment has been held sufficient based on expert medical opinion which considered the plaintiff’s particular circumstances and the expert’s experience with similar cases.” (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 995 [16 Cal.Rptr.2d 787], internal citations omitted, disapproved of on another ground in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d 179].)

•“[I]t is our view that in an action for wrongful discharge, and pursuant to the present day concept of employer-employee relations, the term ‘wages’ should be deemed to include not only the periodic monetary earnings of the employe (sic) but also the other benefits to which he is entitled as a part of his compensation.” (Wise v. Southern Pac. Co. (1970) 1 Cal.3d 600, 607 [83 Cal.Rptr. 202, 463 P.2d 426].)

•In determining the period that plaintiff’s employment was reasonably certain to have continued, the trial court took into consideration plaintiff’s “ ‘physical condition, his age, his propensity for hard work, his expertise in managing defendants’ offices, the profit history of his operation, [and] the foreseeability of the continued future demand for tax return service to small taxpayers … .’ ” (Drzewiecki v. H & R Block, Inc. (1972) 24 Cal.App.3d 695, 705 [101 Cal.Rptr. 169].)

•In adding subdivision (b) to section 3294 in 1980, “[t]he drafters’ goals were to avoid imposing punitive damages on employers who were merely negligent or reckless and to distinguish ordinary respondeat superior liability from corporate liability for punitive damages.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572 [88 Cal.Rptr.2d 19, 981 P.2d 944], see Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1150–1151 [74 Cal.Rptr.2d 510].)